United States Court of Appeals

for the Fifth Circuit ____________

No. 23-10142

____________

United States of America, 

Plaintiff—Appellee, 

versus

Joe Luis Guzman, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 4:16-CR-91-1 

______________________________

Before Stewart, Clement, and Ho, Circuit Judges.

Per Curiam:*

Joe Luis Guzman appeals his 24-month revocation sentence. Because 

Guzman has not shown plain error in the district court’s decision, we 

AFFIRM. 

I.

On June 3, 2021, Guzman began a three-year term of supervised 

release after four years of federal incarceration. A condition of Guzman’s 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

February 6, 2024

Lyle W. Cayce

Clerk

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No. 23-10142

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release was that he “not commit another federal, state, or local crime.” But 

less than two months after his release, Guzman was named as a suspect for 

assault with a deadly weapon. According to police records, on July 25, 2021,

Guzman broke into the residence of his ex-girlfriend—who was pregnant 

with his child—and repeatedly punched, kicked, and pistol-whipped her, 

pointed a gun at her head, and threatened to kill her. Then, on or about

August 12, 2021, Guzman again broke into his ex-girlfriend’s home, but she 

was not there. So, Guzman sent her text messages with photos of himself 

inside the home and threatened to harm her and burn the residence to the 

ground. Guzman was arrested while trying to flee the premises. The door to 

the house had been kicked in, and a red gas can was found perched on a 

window ledge. 

Based on these events, Guzman’s probation officer petitioned for a 

violator’s warrant. And based on Guzman’s August actions, Guzman was 

named in a three-count indictment in Texas state court for (1) burglary of a 

habitation with intent to commit arson, (2) assault with a deadly weapon, and 

(3) burglary of a habitation with intent to commit assault. In November 2022, 

Guzman pled guilty to a reduced charge of burglary of a habitation—a 

second-degree felony—on count three of the indictment. He was sentenced 

to five years in prison, and the State agreed to waive prosecution on the other 

two counts of the indictment. Guzman’s federal probation officer filed an 

addendum to the petition in December 2022 updating the federal district 

court on Guzman’s guilty plea. 

Guzman’s revocation hearing occurred on February 2, 2023 and 

proceeded as follows. To start the hearing, the district court asked the 

government to clarify whether it was “proceeding on both the petition and 

the addendum,” to which the government responded that the petition and 

addendum “came out of the same course of conduct in one single incident.” 

It appears that this statement was incorrect. As explained above, the petition 

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concerned two separate incidents—the July 25 assault and the August 12 

burglary—while the addendum concerned only the latter event. Moreover, 

the facts surrounding the August 12 burglary were laid out solely in the 

petition; the addendum stated only that Guzman had pled guilty to burglary 

of a habitation. Nonetheless, based on the government’s statement, the 

district court asked, “So we can proceed then only on the addendum?” to 

which the government responded, “Yes.” The court then asked Guzman 

how he pled to the allegation that he “violated a state law of burglary of a 

habitation, in violation of Texas Penal Code Section 30.02(c)(2), a second 

degree felony,” and Guzman pled “True.” When the court asked the 

government if it had anything else to present to the court, the government 

responded, “Nothing in addition to the addendum” but noted that “the 

underlying offense conduct [was] extraordinarily violent.” The court 

sentenced Guzman to 24 months in prison, Guzman’s counsel stated that she

had no objections, and the hearing was adjourned. Guzman now appeals his 

revocation sentence.

II.

Because Guzman did not object to his revocation sentence below, we 

review only for plain error. United States v. Fuentes, 906 F.3d 322, 325 (5th 

Cir. 2018). To satisfy this “difficult” standard, Guzman bears the burden of 

demonstrating (1) “an error” (2) that is “clear or obvious, rather than subject 

to reasonable dispute” and (3) that affected Guzman’s “substantial rights,” 

which means it “affected the outcome of the district court proceedings.” 

Puckett v. United States, 556 U.S. 129, 135 (2009) (citations and quotation 

marks omitted). Even if Guzman satisfies all three prongs, we have “the 

discretion to remedy the error—discretion which ought to be exercised only 

if the error seriously affects the fairness, integrity or public reputation of 

judicial proceedings.” Id. (cleaned up).

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III.

The Sentencing Guidelines set forth “three grades of probation and 

supervised release violations.” U.S.S.G. § 7B.1.1(a). As relevant here, 

“Grade A Violations” include “conduct constituting” (1) “a federal, state, 

or local offense punishable by a term of imprisonment exceeding one year

that [] is a crime of violence,” or (2) “any other federal, state, or local offense 

punishable by a term of imprisonment exceeding twenty years.” Id. § 

7B.1.1(a)(1). “Grade B Violations” are “conduct constituting any other 

federal, state, or local offense punishable by a term of imprisonment 

exceeding one year.” Id. § 7B.1.1(a)(2). For an individual like Guzman with 

a Criminal History Category of IV, the Guidelines call for a revocation 

sentence of 24 to 30 months for a Grade A violation and 12 to 18 months for 

a Grade B violation. U.S.S.G. § 7B.1.4(a).

Guzman contends that the district court plainly erred because it 

applied a Grade A sentence (24 months) to a Grade B violation (burglary of 

a habitation). To be sure, Guzman pled guilty to a second-degree felony, 

which carries a maximum punishment of 20 years’ incarceration under Texas 

law and would therefore qualify as a Class B violation under the Guidelines. 

See Tex. Penal Code § 12.33(a) (“An individual adjudged guilty of a 

felony of the second degree shall be punished by imprisonment in the Texas 

Department of Criminal Justice for any term of not more than 20 years or less 

than 2 years.”). But “[t]he grade of violation does not depend upon the 

conduct that is the subject of criminal charges or of which the defendant is 

convicted in a criminal proceeding.” U.S.S.G. § 7B.1.1(a) cmt. n.1. “Rather, 

the grade of the violation is to be based on the defendant’s actual conduct.”

Id. And Guzman’s “actual conduct” constitutes a Grade A violation even 

though he pled to a lesser offense. 

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Guzman does not dispute that his August 2021 conduct, as set out in 

the revocation petition, would constitute a Grade A violation for revocation 

purposes. Instead, Guzman argues that because the government elected to 

proceed only on the addendum, not the petition, none of the facts from the 

petition were properly before the district court and, in any event, they were 

not sufficiently reliable revocation evidence. In Guzman’s view, the district 

court could only base its revocation sentence on the factual information 

contained in the addendum, which stated in full:

On November 28, 2022, Mr. Guzman appeared before the 

Honorable Mike Thomas in Criminal District Court No. 4, 

Tarrant County, Texas, and pled guilty to the charge of 

Burglary of a Habitation (in violation of Texas Penal Code § 

30.02(c)(2), a Second Degree felony) in Case No. 1696478D. 

Mr. Guzman was sentenced to 5 years imprisonment in the 

Institutional Division of the Texas Department of Criminal 

Justice for the felony offense. 

But plain error exists only when the mistake is “clear or obvious, 

rather than subject to reasonable dispute.” Puckett, 556 U.S. at 135. And here, 

reasonable minds could differ as to the effect of the district court’s exchange 

with the government at the start of the revocation hearing. To be sure, 

Guzman’s suggestion—that the government “chose to proceed on the 

Addendum only at revocation,” abandoning any reliance on the allegations in 

the petition—is one possible interpretation of that colloquy. But another 

reasonable understanding of the discussion is that the government 

considered the petition and addendum to be part-and-parcel, so by telling the 

court it could proceed “only on the addendum,” the government believed it 

was proceeding on Guzman’s guilty plea to burglary of a habitation (as set 

forth in the addendum) including the factual allegations supporting that 

conviction (even though those facts were set forth in the petition). Indeed, it 

appears that the district court was operating under the latter interpretation 

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since the court later stated that it was “adopt[ing] the statements contained 

in the Supervised Release Petition” before finding that Guzman had violated 

his supervised release and sentencing him to 24 months in prison.

As for Guzman’s argument that the factual information contained in 

the petition was not sufficiently reliable revocation evidence, he again cannot 

show plain error because he has pointed to no binding “precedent directly 

supporting [his] contention.” United States v. Miller, 406 F.3d 323, 330 (5th 

Cir. 2005). Instead, he points to two unpublished decisions: United States v. 

Perez, 460 F. App’x 294 (5th Cir. 2012) and United States v. Standefer, No. 

95-50043, 1996 WL 46805 (5th Cir. Jan. 15, 1996). But we explained in United 

States v. Foley that Perez and Standefer stand only for the proposition that “a 

district court errs when it relies on a bare allegation of a new law violation 

contained in a revocation petition,” i.e., where the petition “refers to the 

mere fact of an arrest—[such as] the date, charge, jurisdiction and 

disposition—without corresponding information about the underlying facts 

or circumstances regarding the defendant’s conduct that led to the arrest.” 

946 F.3d 681, 686–87 (5th Cir. 2020) (emphasis added) (cleaned up). There 

is no plain error where, as here, the petition “contains other indicia of 

reliability, such as the factual underpinnings of the conduct giving rise to the 

arrest.” Id. at 687.

The bottom line is that Guzman failed to take issue with the way his 

revocation hearing was conducted when he had the chance. The very 

“purpose of plain error review is to instill in litigators the importance of 

preparing adequately before appearing in the trial court and, as necessary, 

clarifying issues to that court. Timely, adequate objections allow the trial 

court to rule in the first instance and, if necessary, correct itself without 

spawning an appeal . . . of [a potential] error that was unwittingly committed, 

because not brought to [the district court’s] attention.” United States v. 

Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012). Moreover, “[c]lose 

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calls do not cut it for plain-error review” because “[b]y definition, a close call 

cannot be the obvious or plain error a defendant needs to show when 

asserting an error he did not give the district court a chance to fix.” United 

States v. McNabb, 958 F.3d 338, 341 (5th Cir. 2020).

AFFIRMED.

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